Ernst & Young LLP Special Report, Unemployment Insurance, Worker Classification

California law reduces population of workers that can be treated as independent contractors

On September 11, 2019, the California Senate passed legislation under AB-5 to codify the California Supreme Court decision in Dynamex and expand and clarify its application.  This bill would significantly impact all industries that customarily engage independent contractors.

California’s pioneering independent contractor legislation could have broad implications on the gig economy (e.g., rideshare and delivery drivers) and is certain to trigger a larger national discussion.

California’s pioneering independent contractor legislation could have broad implications on the gig economy (e.g., rideshare and delivery drivers) and is certain to trigger a larger national discussion.

Governor Newsom has signaled his support for the bill and is expected to sign it into law within the coming days. 

Background

Prior to April 30, 2018, and for most matters before the California Division of Labor Standards Enforcement, depending on the remedial nature of the legislation at issue, the “multi-factor” or the “economic realities” test was applied under the California Supreme Court case of S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341 (Borello). In applying this economic reality test, the most significant factor considered was whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed.  There were an additional 11 factors also considered. 

Effective April 30, 2018, the California Supreme Court issued a landmark decision in the matter of Dynamex Operations West, Inc. v. Superior Court of Los Angeles.  In Dynamex, the California Supreme Court created a presumption that a worker who performs services is an employee not an independent contractor and adopted a new worker classification standard.  The result of the Dynamex case was to replace the Borello standard with the new ABC test.  The Dynamex holding was narrow in its application as it was limited to wage orders that were issued by the Industrial Welfare Commission. 

For unemployment and disability insurance purposes. whether a worker is an employee or independent contractor is currently determined through the application of the factors contained in common law or employment and statutory provisions of the California unemployment insurance code. The California Employment Development Department provides a questionnaire in DE-38 for this purpose.

Key provisions under California AB-5

  • Codifies the Dynamex (ABC test) standard.  California AB-5 codifies Dynamex (the ABC test) for purposes of the California labor code, the unemployment insurance code and for the wage orders of the Industrial Welfare Commission.  Accordingly, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all the following conditions are satisfied:

(A)The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.

(B) The person performs work that is outside the usual course of the hiring entity’s business.

(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

  • Retains current exceptions for the definition of employee. Any exception to the term “employee,” “employer,” “employ,” or “independent contractor,” and any extensions of employer status or liability, shall remain in full effect. (California AB-5 2750.3(a)(2).)
  • Reverts to Borello standard (i.e., old standard) in some cases. If a court of law rules that the new standard (i.e., ABC Test) cannot be applied to a particular case, the determination of employee or independent contractor status shall instead be governed by the old standard (i.e., Borello). (California AB-5 2750.3(a)(3).)

  • Exempts certain occupations from Dynamex (ABC test).  The law would exempt specified occupations from the application of the ABC test and would instead subject them to the application of the older standard (i.e., Borello). These exempt occupations would include, but are not limited to, the following: licensed insurance agents, certain licensed health care professionals, registered securities broker-dealers or investment advisers, direct sales salespersons, real estate licensees, commercial fishermen, workers providing licensed barber or cosmetology services, and others performing work under a contract for professional services, with another business entity, or pursuant to a subcontract in the construction industry. (California AB-5 2750.3(b).)

Effective Date Under AB-5

California AB-5 provides that the codification of the ABC Test is not a change in law, but rather declaratory of existing law and should apply retroactively to existing claims to the extent permitted by law. 

Generally, and except where otherwise noted within the law, the other provisions of AB-5 are effective with work performed on or after January 1, 2020.

Any worker who is an employee by application of this law is not required to be covered by worker’s compensation insurance until July 1, 2020.  (AB-5 Assembly floor analysis, 9-10-2019.)

Observations

Tightening the worker classification rules so that more workers are eligible for benefits, like unemployment insurance, and protections, like minimum wage and overtime, is something other states are also considering (e.g., Alaska, New York and Oregon). There are also federal proposals similar to California AB-5 being promoted by federal lawmakers with an emphasis of giving gig workers the right to union representation.    

California AB-5 and similar legislation is likely to face fierce challenges from businesses reliant on gig workers, making the outcome uncertain.

Finally, implementation of the law will be complex requiring detailed guidance from the California agencies concerned with worker classification. 

In the meantime, businesses will need to consider the employment tax and human resources policy changes that will be necessary to comply with California AB-5 once enacted.

View the Ernst & Young LLP tax alert here.

Ernst & Young LLP Special Report, Paying Wages

How Well Are You Managing Your Third-Party Payroll Provider?

As the payroll rules continue to expand in scope and complexity, more businesses are turning to outsourcing. While payroll outsourcing can reduce technology and administrative costs, it does not replace the need for experienced professionals with an understanding of payroll rules and a focus on governance.

In this special report from Ernst & Young LLP, a careful exmaination is given of the roles and responsibilities that continue to apply when the payroll function is outsourced. The report includes a scorecard that readers can use to determine how well they are governing their third-party payroll arrangements.

You can download the full report from the link below.

Managing employment tax risk in payroll outsourcing arrangements

Social Security/Medicare, Wage and Tax Reporting

White House Discusses Payroll Tax Cuts

According to new sources, senior White House officials were in preliminary discussions on August 19, 2019 about a possibility of a reduction in payroll taxes, as well as other tax breaks, to bolster a slowing economy.   In a press conference on August 20, 2019, President Trump denied concerns over the economy but did confirm that his Administration is looking at payroll and capital gains taxes.

While President Trump did not elaborate on how he defines payroll taxes, the term is typically used to describe the Social Security/Medicare (FICA) taxes that are paid by both employees and employers.  Social Security tax is 6.2% of annual wages up to $132,900 for 2019 and Medicare tax is 1.45% of all covered wages. 

Because FICA taxes are credited to trust funds that pay for federal retirement and disability benefits, proposals to reduce employer/employee contributions are typically dead on arrival.   However, President Obama was successful at enacting economic stimulus legislation that directly or indirectly put a portion of the FICA tax expense back into workers’ pockets with subsidies from the general budget.

Payroll tax cuts under President Obama

To create economic stimulus in response to the recession that triggered in 2008, President Obama stewarded two provisions through Congress that put a portion of worker’s FICA taxes back into the economy. It is emphasized that both provisions were funded by general revenues thereby adding to the national debt.  

  • The Making Work Pay tax credit. For 2009 and 2010, a refundable tax credit was available of $400 to working individuals and $800 to working families.  The credit was calculated at a rate of 6.2% on earned income for 2009 and 2010 and phased out for taxpayers with adjusted gross income over $75,000 ($150,000 for married couples filing jointly).  Employers delivered the credit to their employees by reducing their federal income tax withholding by the amount of the credit as computed for the periodic wage payment.  Any portion of the credit that was not delivered by the employer through payroll checks as of December 31 could be claimed by eligible taxpayers on the Form 1040.  The cost of the credit was funded by general revenues and not the Social Security trust fund.

  • Social Security tax cut.  In 2011 and 2012, the Social Security tax rate that applied to employees and self-employed individuals was reduced by 2.0% but employers were subject to the full 6.2%.  Like the Making Work Pay tax credit, the 2% reduction in workers’ Social Security taxes was funded by general revenues and not the Social Security trust fund. 

Observations

Thus far, the President has not presented a formal proposal to Congress for vote that would offer workers a reduction in their FICA taxes.  It is worthy to note, however, that should the nation face a recession similar in severity to that in 2008-2009, we may see a return to those Obama-era payroll tax cut provisions.

Ernst & Young LLP Special Report, Paying Wages

The cents and sensibility of direct deposit and pay cards

Read this Ernst & Young LLP special report to learn about the state rules governing direct deposit and pay cards that serve to limit the electronic payment options that can be offered to the workforce and view the state survey to see where electronic payments can be mandated.

The cents and sensitivities of direct deposit and pay cards

Paid family and medical leave insurance

Massachusetts paid family and medical leave: Are the state contributions taxable?

Effective October 1, 2019, contributions are required to be paid for Massachusetts Paid Family and Medical Leave (PFML) in advance of benefits that will become available on and after January 1, 2021. (EY Payroll Newsflash, Vol. 20, 122, 8-22-2019.)     

Following is information to address questions that have been raised about the tax treatment of Massachusetts PFML contributions.   

Tax treatment of Massachusetts PFML contributions

Based on the initial rate of 0.75%, the allocation of PFML contribution rates beginning October 1, 2019 is 0.62% for medical leave and 0.13% for family leave on covered wages up to the Social Security wage limit of $132,900 for 2019.  

  • Employers with fewer than 25 employees. 100% of the contributions are paid by employees; however, employers may pay some or all of the employee contribution.
  • Employers with 25 or more employees. Employees are responsible for 100% of the family leave contribution of 0.13%.  Employers may withhold up to 40% of the medical leave portion of the contribution from employees’ wages. Based on the medical leave rate of 0.62%, employers must calculate their contributions at a minimum of 0.372% and may withhold up to 0.248% of employees’ wages and up to 100% of required contributions for family leave. 

The portion of the contribution required to be paid by employers is not included in federal or Massachusetts taxable wages but if the employer pays the employee portion of the contribution, that amount is included in federal and Massachusetts taxable wages.  (IRS Reg.  § 31.3401(a)-1(b)(6); IRC §3306(b)(6); IRC §3121(a)(6); Mass. Gen. L. Chapter 62 § 1.)

Example 1:  If the employer pays on behalf of their employees any portion of the PFML contributions in (1) above, that amount is included in federal and Massachusetts taxable wages.  Note that the portion paid by the employee must be deducted on an after-tax basis (and cannot be deducted on a pre-tax basis). 

Example 2:  If the employer pays the employer portion shown in green below, this amount is not included in federal or Massachusetts taxable wages, but if the employer pays on behalf of employees any portion of the amount shown in black below, this amount is included in federal and Massachusetts taxable wages.  Note that the portion paid by the employee must be deducted on an after-tax basis (and cannot be deducted on a pre-tax basis). 

For information concerning the tax treatment of leave benefits provided under paid family and medical leave plans Ernst & Young LLP’s special report.

Worker Classification

Worker misclassification – a Risky Business for avoiding Affordable Care Act

Worker misclassification – a Risky Business for avoiding Affordable Care Act

Here is an interesting article on the high risk businesses take in calling their workers independent contractors to avoid the Obamacare employer mandate.